AMI 608 Negligent Entrustment

This instruction is to be used to determine the entrustor's negligence. Negligent entrustment arises from the combined fault of the entrustor in providing the instrumentality and the entrustee in operating it. This instruction assumes that the entrustee is a party and his or her fault has been determined.

If the entrustee is not a defendant, the underlying tort of the entrustee should nevertheless be determined by the court or jury. If it is determined by the jury, the following elements may be added to the instruction, and the paragraphs should be renumbered:

In instances where the liability of the entrustee is admitted or determined before trial, AMI 210 or a stipulation may be given.

If the case is submitted on interrogatories, the first sentence of this instruction should be replaced with the following:

Do not use the bracketed last paragraph if the case is submitted on interrogatories.

The elements of a negligent entrustment claim were set out in Arkansas Bank & Trust Co. v. Erwin, 300 Ark. 599, 603, 781 S.W.2d 21 (1989). They are: (1) proof the entrustee was incompetent, inexperienced or reckless; (2) the entrustor knew or had reason to know of the entrustee's condition or proclivities; (3) there was an entrustment of the chattel; (4) the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the defendant; and (5) the harm to the plaintiff was proximately or legally caused by the negligence of the defendant. Id. The duty on the part of the entrustor arises with knowledge of the entrustee's proclivities and the risk thereby created in placing the instrumentality in his or her hands. Pace v. Davis, 2012 Ark. App. 193 at 4 (affirming summary judgment for defendant involving entrustment of a firearm because there was a failure of proof on the first and second elements).

The claim of negligent entrustment arises from the combined negligence of the owner/provider of the dangerous instrumentality in entrusting it to the operator and of the operator in its operation. Chaney v. Duncan, 194 Ark. 1076, 1083, 110 S.W. 2d 21, 23 (1937) (Entrustor's liability rests not on master-servant or principal-agent, but on permissive use by a known incompetent.).

For discussion of the claim for negligent entrustment, see Mills v. Crone, 63 Ark. App. 45, 973 S.W.2d 828 (1998) (finding no negligent entrustment of motor vehicle to a reckless driver because defendants did not control its use); Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997) (upholding plaintiff's verdict on negligent entrustment of a motor vehicle to an intoxicated driver); Ponder v. Gorman, 94 Ark. App. 159, 227 S.W.2d 428 (2006) (affirming summary judgment for defendant on grounds that there was insufficient evidence of entrustee's incompetence, intoxication, or recklessness); Central Flying Service v. Crigger, 215 Ark. 400, 405-06, 221 S.W.2d 45, 47–48 (1949) (concluding that there was insufficient evidence of causal relation between entrustee's known recklessness and accident); Collins v. Morgan, 92 Ark. App. 95, 102, 211 S.W.2d 14, 20 (2005) (suggesting that permission to use the instrumentality may be express or implied). See also Restatement (Second) of Torts §§ 308, 390 (1965) (stating elements and explaining “control” element).

This rule is also applicable to aircraft. Cent. Flying Serv. v. Crigger, 215 Ark. at 402, 221 S.W.2d at 46. See Pace v. Davis, 2012 Ark. App. 193, for discussion of entrustment of a firearm.

Arkansas Bank & Trust Co. v. Erwin, 300 Ark. 599, 781 S.W.2d 21 (1989), a venue case, suggests that a financial institution appointed as guardian of an incompetent may be liable as an entrustor for providing the funds to purchase an automobile.

LeClaire v. Commercial Siding and Maintenance Co., 308 Ark. 580, 826 S.W.2d 247 (1992), holds that a claim for negligent entrustment may be made against the original entrustor, when the original entrustee became intoxicated and entrusted the vehicle to a third person, unknown to the entrustor, who was driving when the injury occurred.

If a defendant employer or principal admits vicarious liability for the negligence of the employee or agent, the plaintiff may not pursue a claim for negligent entrustment, hiring, or retention against such defendant. Elrod v. G&R Constr. Co. 275 Ark. 151, 154, 628 S.W.2d 17, 19 (1982); Kyser v. Porter, 261 Ark. 351, 358, 548 S.W.2d 128, 132 (1977). The court in Elrod further ruled that such admission precludes a plaintiff who seeks punitive damages on a negligent entrustment theory from having evidence of the employee's or agent's bad driving record submitted to the jury, at least absent indication that such record would put defendant on notice that its driver would commit a willful, wanton, or intentional act. 275 Ark. at 154-56, 628 S.W.2d at 18-20. See also Moore v. Daniel Enters., Inc., 2006 WL 1155948 (W.D. Ark. April 28, 2006) (applying Elrod). The plaintiff may proceed against the employer, however, for its independent acts of negligence. See Regions Bank v. White, 2009 WL 3148732 (E.D. Ark. Sept. 24, 2009) (plaintiff allowed to proceed on claims that the employer was itself negligent in failing to have a policy requiring the use of warning triangles behind a stopped vehicle, to adequately train drivers regarding the placement of the triangles, to have an escort vehicle, and to maintain the truck).

For an overview, see Henry Woods, Negligent Entrustment Revisited, 30 Ark. L. Rev. 288 (1976).